An obligation in a tack to receive the tenant's children as kindly tenants found effectual.
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In an action betwixt Wilson defender and the Laird of Corshill, for removing from lands, the defender alleged, that this same pursuer had set a tack of the lands libelled to his umquhile father for his life-time, in the end of which tack the pursuer had obliged himself, to accept the bairns of the said tacksman, kindly tacksmen to him before all others; and this defender being the eldest son of his umquhile father who was tacksman, this bond ought to defend him against this pursuer, granter of the bond. This allegeance being considered by the Lords, they found, that this bond ought to work against the pursuer, to cause him give to the defender a tack upon the like conditions, to be done therefore by the defender, as are in use to be done to the pursuer by others his tenants and tacksmen of the like lands in quality and quantity, answerable proportionally to the lands libelled; and therefore, if the defender subsumed in his exception, and offered to perform this duty to the pursuer for a tack, as others do for the like; they sustained this exception upon the bond, to the effect that a tack might be presently perfected to the excipient; and for that end they ordained the pursuer to condescend upon the conditions, which others his tacksmen paid for the like lands; which being condescended, they found, that they would admit the same to the pursuer’s probation, that after the end of the probation, the like conditions being performed to him by this defender, the pursuer might perfect to him a tack of the like nature, containing the like duty and space of endurance, as he is in use to grant to others his tenants for the like conditions ; which conditions, if the defender, after probation as said is, should not perform, the Lords found that the bond could not furnish a defence against the removing, seeing thereby the tenant was bound to do the same in effect, if he claimed a tack to be set thereby to him; otherwise the defender might ever clothe himself with that bond, and never seek a tack, which was against all reason that the tenement should ever bruik the land in respect of the bond, and should pay nothing for the same; but this bond was found could not defend, if the pursuit had been made by a singular successor to the pursuer’s right; and this was found as said is, albeit the pursuer alleged, that the clause of the bond being adjected to a tack which expired, should not furnish any ground of defence, because it neither contained time of entry nor term of endurance, nor duty, and was no real right; and if a tack, albeit it had been given to him, yet wanting time of entry, ish, and duty, it could not defend him, far less such a bond; which was repelled by the Lords, and interlocutor given ut supra.
Act. Cunningham.Alt. Hope.Clerk, Scot.
Fol. Dic. v. 2. p. 420. Durie, p. 191.
